Metz v. G. J. S. Realty Corp.

17 Misc. 2d 521, 183 N.Y.S.2d 908, 1959 N.Y. Misc. LEXIS 4471

Opinion

Per Curiam.

The defense designated as a “ Complete Defense ’ ’ herein is not one which completely defeats the cause of action. Since defendant has admitted an overcharge, although less than that claimed by plaintiff, the cause of action may not be dismissed for in any event plaintiff would at least be entitled to recover that amount. Nor does the tender of the check for $231.42 prior to the commencement of this action constitute a complete defense. The failure to accept the tender would serve only to deprive plaintiff of an award of statutory costs should there eventually be a recovery by plaintiff for no more than the amount of defendant’s offer.

It was error, therefore, to deny plaintiff’s motion to strike the “ Complete Defense ”.

The orders should be reversed, with $10 costs, and motion granted.

Concur — Hecht, J. P., Aurelio and Tilzer, JJ.

Orders reversed, etc.